SMSC
Form 8-K
August 4, 2005
Exhibit 3.1
AMENDED AND RESTATED
BY-LAWS
OF
STANDARD MICROSYSTEMS CORPORATION
(Effective August 1, 2005)
1. STOCKHOLDERS
1.1 Place of Stockholders' Meetings. All meetings of the stockholders of
the Corporation shall be held at such place or places, within or outside the
state of incorporation, as may be fixed by the Board of Directors from time to
time or as shall be specified in the respective notices thereof.
1.2 Date and Hour of Annual Meetings of Stockholders. An annual meeting of
stockholders shall be held each year on the third Tuesday of July, unless said
date is a legal holiday, in which case the meeting shall be held on the next day
thereafter which is not a legal holiday, at 10:00 A.M., or on such other date
and at such other times as may be designated by the Board of Directors. Each
such meeting shall be held at ten o'clock in the morning, local time in effect
at the place where the meeting is held, unless the Board of Directors shall fix
another hour which shall be stated in the notice of the meeting.
1.3 Purposes of Annual Meeting. The annual meeting of the stockholders
shall be held for the purpose of electing directors and transacting such other
business as may properly come before the meeting.
1.4 Special Meetings of Stockholders. Special meetings of the stockholders
or of any class or series thereof entitled to vote may be called by the Chairman
or by the President or by the Board of Directors, or at the request in writing
by stockholders of record owning at least sixty-six and two-thirds percent
(66-2/3%) of the issued and outstanding shares of the Corporation entitled to
vote at such meeting. Any such request by stockholders shall include a detailed
description of the purposes of, and the actions proposed to be taken at, such
meeting and, if such meeting is requested for purposes of the election of
directors, the request shall include the information specified in Section
2.2.1(B) with respect to each nominee to be considered for election at the
meeting. The Corporation shall use reasonable efforts to hold any special
meeting requested by stockholders as promptly as practicable following receipt
of a request therefor complying with the provisions of this Section 1.4;
provided, that the Corporation shall not be required to hold any such meeting
prior to the 60th day following receipt of such request.
1.5 Notice of Meetings of Stockholders. Except as otherwise expressly
required or permitted by the laws of the state of incorporation, not less than
ten days nor more than fifty days before the date of every stockholders meeting
the Secretary shall give to each stockholder of record entitled to vote at such
meeting, written notice stating the place, date and hour of the meeting and, in
the case of a special meeting, the purpose or purposes for which the meeting is
called. Such notice, if mailed, shall be deemed to be given when deposited in
the United States mail, postage prepaid, directed to the stockholder at his
address for notices to such stockholder as it appears on the records of the
Corporation.
1.6 Quorum of Stockholders.
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(a) Unless otherwise provided by the laws of Delaware, at any meeting
of the stockholders, the presence in person or by proxy of stockholders entitled
to cast a majority of the votes thereat shall constitute a quorum.
(b) At any meeting of the stockholders at which a quorum shall be
present, a majority of those present in person or by proxy may adjourn the
meeting from time to time without notice other than announcement at the meeting.
In the absence of a quorum, the officer presiding thereat shall have power to
adjourn the meeting from time to time until a quorum shall be present. Notice of
any adjourned meeting, other than announcement at the meeting, shall not be
required to be given, except as provided in paragraph (d) below and except where
expressly required by law.
(c) At any adjourned session at which a quorum shall be present, any
business may be transacted which might have been transacted at the meeting
originally called but only those stockholders entitled to vote at the meeting as
originally noticed shall be entitled to vote at any adjournment or adjournments
thereof, unless a new record date is fixed by the Board of Directors.
(d) If an adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
1.7 Chairman and Secretary of Meeting. The Chairman or the Vice-Chairman or
the President shall preside at meetings of the stockholders. The Secretary shall
act as secretary of the meeting, or in his absence, the Assistant Secretary
shall act, or if neither is present, then the presiding officer may appoint a
person to act as secretary of the meeting.
1.8 Voting by Stockholders. Except as may be otherwise provided by these
By-laws, at every meeting of the stockholders, each stockholder shall, unless
otherwise provided, be entitled to one vote for each share of stock standing in
his name on the books of the Corporation on the record date for the meeting. All
elections and questions shall be decided by the vote of a majority in interest
of the stockholders present in person or represented by proxy and entitled to
vote at the meeting, except as otherwise permitted or required by the laws of
Delaware, the certificate of incorporation or these By-laws.
1.9 Proxies. Any stockholder entitled to vote at any meeting of
stockholders may vote either in person or by his attorney-in-fact. Every proxy
shall be in writing, subscribed by the stockholder or his duly authorized
attorney-in-fact, but need not be dated, sealed, witnessed or acknowledged.
1.10 Inspectors. The election of Directors and any other vote by ballot at
any meeting of the stockholders shall be supervised by at least two inspectors.
Such inspectors may be appointed by the Chairman or President before or at the
meeting; or if one or both inspectors so appointed shall refuse to serve or
shall not be present, such appointment shall be made by the officer presiding at
the meeting.
1.11 List of Stockholders.
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(a) At least ten days before every meeting of stockholders, the
Secretary shall prepare and make a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder.
(b) During ordinary business hours, for a period of at least ten days
prior to the meeting, such list shall be open to examination by any stockholder
for any purpose germane to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the
meeting, or if not so specified, at the place where the meeting is to be held.
(c) The list shall also be produced and kept at the time and place of
the meeting during the whole time of the meeting and it may be inspected by any
stockholder who is present.
(d) The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
Section 1.11 or the books of the Corporation, or to vote in person or by proxy
at any meeting of stockholders.
1.12 Procedure at Stockholders' Meetings. The order of business and all
other matters of procedure at every meeting of stockholders may be determined by
the presiding officer. Not less than 15 minutes following the presentation of
any resolution to any meeting of stockholders, the presiding officer may
announce that further discussion on such resolution shall be limited to not more
than three persons who favor and not more than three persons who oppose such
resolution, each of whom shall be designated by the presiding officer and shall
thereupon be entitled to speak thereon for not more than five minutes. After
such person, or such a lesser number thereof as shall advise the presiding
officer of their desire so to speak, shall have spoken on such resolution, the
presiding officer may direct a vote on such resolution without further
discussion thereon at the meeting. Except where otherwise provided by the
certificate of incorporation, law or these By-laws, every question that shall
come before a meeting shall be decided by a majority of the votes cast thereon
and any such majority vote shall be the act of the stockholders.
2. DIRECTORS
2.1 Powers of Directors. The property, business and affairs of the
Corporation shall be managed by its Board of Directors which may exercise all
the powers of the Corporation except such as are by law or the certificate of
incorporation or these By-laws required to be exercised or done by the
stockholders.
2.2 Number, Method of Election, Terms of Office of Directors. The number of
directors which shall constitute the whole Board of Directors shall not be less
than three, nor more than fifteen, the exact number of directors to be such
number as may be fixed from time to time within such limits by resolution
adopted by affirmative vote of a majority of the whole Board of Directors. No
decrease in the number of directors shall shorten the term of any incumbent
director. Each director shall at all times from and after the second anniversary
of the director's first election own at least an amount of the Corporation's
common stock, including common stock equivalents in the form of phantom stock
grants, determined as the quotient obtained by dividing two times the then
current annual retainer for non-employee directors by the closing price of a
share of Corporation common stock on the trading day immediately before the date
of such determination. The Secretary shall periodically perform audits regarding
the compliance of each director with such stock ownership requirements, and in
the event that a director receives written notification from the Secretary
indicating such director's noncompliance with the stock ownership requirements,
such director shall have six months from the date of such written notice to come
into compliance with the stock ownership rules.
2.2.1 (A) Nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote for the election
of directors.
(B) Such nominations, of not made by the Board of Directors, shall be
made by notice in writing, delivered or mailed by first class United States
mail, postage prepaid, by a stockholder to the Secretary of the Corporation
not less than 60 days nor more than 90 days prior to the first anniversary
of the preceding year's annual meeting; provided, however, that in the
event that the date of the annual meeting is advanced by more than 20 days,
or delayed by more than 60 days, from such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the 90th day
prior to such annual meeting and not later than the close of business on
the later of the 60th day prior to such annual meeting or the tenth day
following the day on which public announcement of the date of such meeting
is first made. Each such notice shall set forth (i) the name, age, business
address and, if known, residence address of each nominee proposed in such
notice, (ii) the principal occupation or employment of each such nominee,
(iii) the number of shares of stock of the Corporation which are
beneficially owned by each such nominee, (iv) all other information
relating to such nominee that would be required to be disclosed in
solicitations of proxies for election of directors, or otherwise would be
required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended, including such person's written consent
to serving as a director if elected, and (v) a statement that such nominee
is qualified to serve as a director of the Corporation or, if not so
qualified, the basis for such nominee's failure to so qualify, all in
reasonable detail so that such information may be independently verified.
Such notice shall be accompanied by the certificate of the stockholder
proposing to make such nomination that the statements made in such notice
are true, accurate, and complete in all respects. Nomination or election of
any such nominee as a director shall not constitute a proposal made by or
on behalf of the Corporation for purposes of Regulation 14A, unless the
Board of Directors shall otherwise determine.
(C) Notice of nominations which are proposed by the Board of
Directors shall be given on behalf of the Board, at or prior to the meeting
of stockholders at which such nominations are to be voted upon, by the
chairman of the meeting.
(D) The chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in accordance
with the By-laws, and if he should so determine, he shall so declare to the
meeting, whereupon the defective nomination shall be disregarded.
2.3 Vacancies on Board of Directors.
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(a) Any Director may resign his office at any time by delivering his
resignation in writing to the Chairman or the President or the Secretary. It
will take effect at the time specified therein, or, if no time is specified, it
will be effective at the time of its receipt by the Corporation. The acceptance
of a resignation shall not be necessary to make it effective, unless expressly
so provided in the resignation.
(b) Any vacancy occurring in the Board of Directors caused by death,
resignation, or removal, and any newly created directorship resulting from an
increase in the number of directors, may be filled by a majority of the
directors in office, although less than a quorum, or by a sole remaining
director. Each director chosen to fill a vacancy or newly created directorship
shall hold office until the next election of the class for which such director
shall have been chosen, and until his successor shall be elected and qualified,
or until his death, or until he shall have resigned, or have been removed.
2.4 Meetings of the Board of Directors.
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(a) The Board of Directors may hold their meetings, both regular and
special, either within or outside the state of incorporation.
(b) Regular meetings of the Board of Directors may be held at such
time and place as shall from time to time be determined by resolution of the
Board of Directors. No notice of such regular meetings shall be required. If the
date designated for any regular meeting be a legal holiday, then the meeting
shall be held on the next day which is not a legal holiday.
(c) Immediately following the annual meeting of the stockholders, a
regular annual meeting of the Board of Directors shall be held for the election
of officers and the transaction of such other business as may come before it. If
such meeting is held at the place of the stockholders meeting, no notice thereof
shall be required.
(d) Special meetings of the Board of Directors shall be held whenever
called by direction of the Chairman or the President or at the written request
of two directors.
(e) The Secretary shall give notice to each director of any special
meeting of the Board of Directors by mailing the same at least two days before
the meeting or by telegraphing or delivering the same not later than the day
before the meeting. Such notice need not include a statement of the business to
be transacted at, or the purpose of, any such meeting. Any and all business may
be transacted at any meeting of the Board of Directors. No notice of any
adjourned meeting need be given. No notice to or waiver by any Director shall be
required with respect to any meeting at which such Director is present.
2.5 Quorum and Action. One-half of the total number of directors, but not
less than two directors, shall constitute a quorum for the transaction of
business; but if there shall be less than a quorum at any meeting of the Board,
a majority of those present may adjourn the meeting from time to time. Except
where otherwise provided by the By-laws, the vote of a majority of the directors
present at any meeting at which a quorum is present shall be the act of the
Board of Directors.
2.6 Presiding Officer and Secretary of Meeting. The Chairman, or, in his
absence, the Chairman of the Corporate Governance Committee, or, in his absence,
the Vice-Chairman, or in his absence, the President, or, in their absence, a
member of the Board of Directors selected by the members present, shall preside
at meetings of the Board. The Secretary shall act as secretary of the meeting,
but in his absence, the presiding officer may appoint a secretary of the
meeting.
2.7 Action by Consent without Meeting. Any action required or permitted to
be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes or proceedings of the Board or committee.
2.8 Executive Committee. The Board of Directors may appoint from among its
members and, from time to time, may fill vacancies in an Executive Committee of
two or more to serve during the pleasure of the Board. During the intervals
between the meetings of the Board, the Executive Committee shall possess and may
exercise all of the powers of the Board in the management of the business and
affairs of the Corporation conferred by these By-laws or otherwise. The
Committee shall keep a record of all its proceedings and report the same to the
Board. A majority of the members of the Committee shall constitute a quorum. The
vote of a majority of the members of the Committee present at any meeting at
which a quorum is present shall be the act of the Committee.
2.9 Compensation Committee. The Board of Directors may appoint from among
its members and, from time to time, may fill vacancies in, a Compensation
Committee of two or more to serve during the pleasure of the Board. Such
Committee shall have the power and authority vested in the Committee referred to
in any Stock Option Plan of the Corporation, and shall have power with respect
to the salaries and other compensation of all employees of the Corporation or
its subsidiaries who are directors or whose salaries are at a rate of $25,000 or
more per year. The members of such Committee shall not be eligible to receive
any compensation from the Corporation or any subsidiary of the Corporation
except as provided in Section 2.11. Such Committee shall keep a record of all
its proceedings and report the same to the Board. A majority of the members of
such Committee shall constitute a quorum. The vote of a majority of the members
of such Committee present at any meeting at which a quorum is present shall be
the act of the Committee..
2.10 Other Committees. The Board of Directors may also appoint from among
its members such other committees of two or more directors as it may from time
to time deem desirable and may delegate to such committees such powers of the
Board as it may consider appropriate.
2.11 Compensation of Directors. Directors shall receive such reasonable
compensation for their service on the Board of Directors or any committees
thereof, whether in the form of salary or a fixed fee for attendance at
meetings, or both, with expenses, if any, as the Board of Directors may from
time to time determine. Nothing herein contained shall be construed to preclude
any Director from serving in any other capacity and receiving compensation
therefor.
2.12 Removal of Directors. A director may be removed only for cause.
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3. OFFICERS
3.1 Officers, Title, Elections, Terms.
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(a) The Corporation shall have a Chairman, Vice-Chairman, President, a
Treasurer and a Secretary, who shall be elected by the Board of Directors at its
annual meeting following the annual meeting of the stockholders, to serve at the
pleasure of the Board or otherwise as shall be specified by the Board at the
time of such election and until their successors are elected and qualify.
(b) The Board of Directors may elect at any time, and from time to
time, one or more Executive Vice Presidents, one or more Senior Vice Presidents,
one or more Vice Presidents, one or more Assistant Vice Presidents, a
Controller, one or more Associate Treasurers, one or more Assistant Treasurers,
one or more Assistant Secretaries and one or more Assistant Controllers and may
elect or appoint such other officers or agents with such duties as it may deem
necessary or desirable. Such additional officers shall serve at the pleasure of
the Board or otherwise as shall be specified by the Board at the time of such
election or appointment. Two or more offices may be held by the same person.
(c) Any vacancy in any office may be filled for the unexpired portion
of the term by the Board of Directors.
(d) Any officer or agent elected or appointed by the Board of
Directors may be removed at any time by the affirmative vote of a majority of
the entire Board of Directors.
(e) Any officer may resign his office at any time. Such resignation
shall be made in writing and shall take effect at the time specified therein or,
if no time be specified, at the time of its receipt by the Corporation. The
acceptance of a resignation shall not be necessary to make it effective, unless
expressly so provided in the resignation.
(f) The salaries of all officers of the Corporation shall be fixed by
the Board of Directors.
3.2 Powers and Duties of Chairman. The Chairman shall have such specific
powers and responsibilities as may be conferred upon him by the Board of
Directors and shall report directly to the Board of Directors. He shall be the
chief policy officer of the Corporation. He shall, when present, preside at
meetings of the stockholders, the Board of Directors and the Executive
Committee.
3.3 Powers and Duties of Vice-Chairman. The Vice-Chairman shall have such
specific powers and responsibilities as may be conferred upon him by the Board
of Directors. He shall report directly to the Chairman. In the event of the
absence of the Chairman, or his incapacity or inability to act, then the
Vice-Chairman shall preside at all meetings of the stockholders, the Board of
Directors and the Executive Committee.
3.4 Powers and Duties of President.
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(a) Except in such instances as the Board may confer powers in
particular transactions upon the Chairman or any other officer, and subject to
the control and direction of the Board of Directors, the President shall
supervise, manage and direct the business of the Corporation and shall
communicate to the Board of Directors and any committee thereof reports,
proposals and recommendations for their respective consideration or action. In
the event of the absence of the Chairman and the Vice-Chairman, or their
incapacity or inability to act, then the President shall preside at all meetings
of the stockholders, the Board of Directors and the Executive Committee.
(b) The President shall act for or on behalf of the Corporation in all
matters in which action by the President as such is required by law, and he may
do and perform all other acts and things incident to the position of President,
including the signing of contracts and other documents in the name of the
Corporation, except as may be otherwise provided in these By-laws or ordered by
the Board of Directors.
3.5 Powers and Duties of Executive Vice Presidents, Senior Vice Presidents,
Vice Presidents and Assistant Vice Presidents. Each Vice President shall have
such powers and perform such duties as the Board of Directors or the President
may from time to time prescribe, and shall perform such other duties as may be
prescribed in these By-laws.
3.6 Powers and Duties of Treasurer, Associate Treasurer and Assistant
Treasurers.
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(a) The Treasurer shall have the care and custody of all the funds and
securities of the Corporation except as may be otherwise ordered by the Board of
Directors, and shall cause such funds to be deposited to the credit of the
Corporation in such banks or depositories as may be designated by the Board of
Directors, and shall cause such securities to be placed in safekeeping in such
manner as may be designated by the Board of Directors.
(b) The Treasurer, or an Associate Treasurer, or an Assistant
Treasurer or such other person or persons as may be designated for such purpose
by the Board of Directors, may endorse in the name and on behalf of the
corporation all instruments for the payment of money, bills of lading, warehouse
receipts, insurance policies and other commercial documents requiring such
endorsement.
(c) The Treasurer, or an Associate Treasurer, or an Assistant
Treasurer or such other person or persons as may be designated for such purpose
by the Board of Directors may sign all receipts and vouchers for payments made
to the Corporation; he shall render a statement of the cash account of the
Corporation to the Board of Directors as often as it shall require the same; he
shall enter regularly in books to be kept by him for that purpose, full and
accurate account of all moneys received and paid by him on account of the
Corporation, and of all securities received and delivered by the Corporation.
(d) The Treasurer shall perform such other duties as may be prescribed
in these By-laws or assigned to him and all other acts incident to the position
of Treasurer. Each Associate Treasurer and each Assistant Treasurer shall
perform such duties as may from time to time be assigned to him by the Treasurer
or by the Board of Directors. In the event of the absence of the Treasurer or
his incapacity or inability to act, then any Associate Treasurer or any
Assistant Treasurer may perform any of the duties and may exercise any of the
powers of the Treasurer.
3.7 Powers and Duties of Secretary and Assistant Secretaries.
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(a) The Secretary shall keep the minutes of all proceedings of the
stockholders, the Board of Directors, the Executive Committee and any other
committees of the Board in proper books provided for that purpose. The Secretary
shall attend to the giving and serving of all notices of the Corporation, in
accordance with the provisions of these By-laws and as required by law. The
Secretary shall be the custodian of the seal of the Corporation. The Secretary
may, with the President, an Executive Vice President, a Senior Vice President, a
Vice President or other authorized officer, sign all contracts and other
documents in the name of the Corporation, and shall affix or cause to be affixed
the seal of the Corporation to such contracts and other documents requiring the
seal of the Corporation, and when so affixed, may attest the same. He shall
perform such other duties as may be prescribed in these By-laws or assigned to
him and all other acts incident to the position of Secretary.
(b) Each Assistant Secretary shall perform such duties as may from
time to time be assigned to him by the Secretary or by the Board of Directors.
In the event of the absence of the Secretary or his incapacity or inability to
act, then any Assistant Secretary may perform any of the duties and may exercise
any of the powers of the Secretary.
(c) The Secretary shall prepare and have custody of the list of
stockholders at each meeting of the stockholders as required by Section 1.11 of
these By-laws. The Secretary shall have custody of all stock books and of all
unissued stock certificates.
3.8 Powers and Duties of Controller and Assistant Controllers.
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(a) The Controller shall be responsible for the maintenance of adequate
accounting records of all assets, liabilities and transactions of the
Corporation. The Controller shall prepare and render such balance sheets,
budgets and other financial reports as the Board of Directors, the Chairman or
the President may require; and he shall perform such other duties as may be
prescribed in these By-laws or assigned to him and all other acts incident to
the position of Controller.
(b) Each Assistant Controller shall perform such duties as from time to
time may be assigned to him by the Controller or by the Board of Directors. In
the event of the absence of the Controller or his incapacity or inability to
act, then any Assistant Controller may perform any of the duties and may
exercise any of the powers of the Controller.
4. INDEMNIFICATION
(a) The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the Corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to the
Corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
(c) To extent that a director, officers, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) or (b), or in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Any indemnification under subsections (a) or (b) may be made as ordered
by a court or as authorized by the Corporation (i) in any specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because he has met the applicable standard of
conduct set forth in subsections (a) and (b), or (ii) in any other lawful
manner. Without limiting the next preceding sentence, such determination may be
made (1) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (2) if
such a quorum is not obtainable, or, even if obtainable and a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (3) by the stockholders, or (4) in any other lawful manner.
(e) Expenses incurred in defending a civil or criminal action, suit or
proceeding shall be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding as authorized by the Board of Directors in
the specific case upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
Corporation as authorized in this Section 4.
(f) The indemnification provided by this Section 4 shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any statute, by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
(g) The Corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of this Section 4.
(h) For the purpose of this Section 4, references to "the Corporation"
include all constituent corporations absorbed in a consolidation or merger as
well as the resulting or surviving corporation so that any person who is or was
a director, officer, employee or agent of such a constituent corporation or is
or was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise shall stand in the same position under the provisions
of this Section with respect to the resulting or surviving corporation as he
would if he had served the resulting or surviving corporation in the same
capacity.
(i) The Board of Directors shall have power to indemnify any person
included within any category described in Section 4(a) against any loss,
liability or expense (including attorney's fees, fines, judgment and amount paid
in settlement) arising out of his service in any such category, unless such
indemnity is prohibited by law applicable to the Corporation, and shall have
such power regardless of whether such indemnity is authorized by Section 145 of
the General Corporation Law.
5. CAPITAL STOCK
5.1 Stock Certificates
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(a) Every holder of stock in the Corporation shall be entitled to have
a certificate signed by, or in the name of, the Corporation by the Chairman or
the Vice-Chairman, or the President or a Vice President, and by the Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary, certifying
the number of shares owned by him.
(b) If such certificate is countersigned by a transfer agent other
than the Corporation or its employee, or by a registrar other than the
Corporation or its employee, the signatures of the officers of the Corporation
may be facsimiles, and, if permitted by law, any other signature may be a
facsimile.
(c) In case any officer who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer before
such certificate is issued, it may be issued by the Corporation with the same
effect as if he were such officer at the date of issue.
(d) Certificates of stock shall be issued in such form not
inconsistent with the Certificate of Incorporation as shall be approved by the
Board of Directors. They shall be numbered and registered in the order in which
they are issued.
(e) All certificates surrendered to the Corporation shall be cancelled
with the date of cancellation, and shall be retained by the Secretary, together
with the powers of attorney to transfer and the assignments of the shares
represented by such certificates, for such period of time as shall be prescribed
from time to time by resolution of the Board of Directors.
5.2 Record Ownership.A record of the name and address of the holder of each
certificate, the number of shares represented thereby and the date of issue
thereof shall be made on the Corporation's books. The Corporation shall be
entitled to treat the holder of any share of stock as the holder in fact
thereof, and accordingly shall not be bound to recognize any equitable or other
claim to or interest in any share on the part of any other person, whether or
not it shall have express or other notice thereof, except as required by law.
5.3 Transfer of Record Ownership. Transfers of stock shall be made on the
books of the Corporation only by direction of the person named in the
certificate or his attorney, lawfully constituted in writing, and only upon the
surrender of the certificate therefor and a written assignment of the shares
evidenced thereby. Whenever any transfer of stock shall be made for collateral
security, and not absolutely, it shall be so expressed in the entry of the
transfer if, when the certificates are presented to the Corporation for
transfer, both the transferor and transferee request the Corporation to do so.
5.4 Lost, Stolen or Destroyed Certificates. Certificates representing
shares of the stock of the Corporation shall be issued in place of any
certificate alleged to have been lost, stolen or destroyed in such manner and on
such terms and conditions as the Board of Directors from time to time may
authorize.
5.5 Transfer Agent; Registrar; Rules Respecting Certificates. The
Corporation shall maintain one or more transfer offices or agencies where stock
of the Corporation shall be transferable. The Corporation shall also maintain
one or more registry offices where such stock shall be registered. The Board of
Directors may make such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of stock certificates.
5.6 Fixing Record Date for Determination of Stockholders of Record. The
Board of Directors may fix in advance a date as the record date for the purpose
of determining stockholders entitled to notice of, or to vote at, any meeting of
the stockholders or any adjournment thereof, or the stockholders entitled to
receive payment of any dividend or other distribution or the allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock, or to express consent to corporate action in writing
without a meeting, or in order to make a determination of the stockholders for
the purpose of any other lawful action. Such record date in any case shall not
be more than sixty days nor less than ten days before the date of a meeting of
the stockholders, nor more than sixty days prior to any other action requiring
such determination of the stockholders. A determination of stockholders of
record entitled to notice or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board of Directors
may fix a new record date for the adjourned meeting.
6. SECURITIES HELD BY THE CORPORATION
6.1 Voting. Unless the Board of Directors shall otherwise order, the
Chairman, the Vice-Chairman, the President, any Vice President, the Secretary or
the Treasurer shall have full power and authority, on behalf of the Corporation,
to attend, act and vote at any meeting of the stockholders of any corporation in
which the Corporation may hold stock and at such meeting to exercise any or all
rights and powers incident to the ownership of such stock, and to execute on
behalf of the Corporation a proxy or proxies empowering another or others to act
as aforesaid. The Board of Directors from time to time may confer like powers
upon any other person or persons.
6.2 General Authorization to Transfer Securities Held By the Corporation.
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(a) Any of the following officers, to wit: the Chairman, the
Vice-Chairman, the President, any Vice President, the Treasurer, the Controller,
any Associate Treasurer, Assistant Treasurer or Assistant Controller of the
Corporation shall be, and they hereby are, authorized and empowered to transfer,
convert, endorse, sell, assign, set over and deliver any and all shares of
stock, bonds, debentures, notes, subscription warrants, stock purchase warrants,
evidences of indebtedness, or other securities now or hereafter standing in the
name of or owned by the Corporation, and to make, execute and deliver, under the
seal of the Corporation, any and all written instruments of assignment and
transfer necessary or proper to effectuate the authority hereby conferred.
(b) Whenever there shall be annexed to any instrument of assignment
and transfer executed pursuant to and in accordance with the foregoing paragraph
(a), a certificate of the Secretary or an Assistant Secretary of the Corporation
in office at the date of such certificate setting forth the provisions of this
Section 6.2 and stating that they are in full force and effect and setting forth
the names of persons who are then officers of the Corporation, then all persons
to whom such instrument and annexed certificate shall thereafter come shall be
entitled, without further inquiry or investigation and regardless of the date of
such certificate, to assume and to act in reliance upon the assumption that the
shares of stock or other securities named in such instrument were theretofore
duly and properly transferred, endorsed, sold, assigned, set over and delivered
by the Corporation, and that with respect to such securities, the authority of
these provisions of the By-laws and of such officers is still in full force and
effect.
7. SIGNATORIES
All checks or demands for money and notes of the Corporation shall be
signed by such officer or officers or such other person or persons as the Board
of Directors may from time to time designate.
8. SEAL
The seal of the Corporation shall be in such form and shall have such
content as the Board of Directors shall from time to time determine.
9. FISCAL YEAR
The fiscal year of the Corporation shall be determined by the Board of
Directors.
10. WAIVER OF OR DISPENSING WITH NOTICE
(a) Whenever any notice of the time, place or purpose of any meeting
of the stockholders, directors or a committee is required to be given by law,
the Certificate of Incorporation or these By-laws, a waiver thereof in writing,
signed by the person or persons entitled to such notice, whether before or after
the holding thereof, or actual attendance at the meeting in person or, in the
case of any stockholder, by his attorney-in-fact, shall be deemed equivalent to
the giving of such notice to such persons.
(b) No notice need be given to any person with whom communication is
made unlawful by any law of the United States or any rule, regulation,
proclamation or executive order issued under any such law.
11. AMENDMENT OF BY-LAWS
11.1 By Board of Directors. The By-laws of the Corporation may be altered,
amended or repealed or new By-laws may be made or adopted by the affirmative
vote of a majority of the whole Board at any regular or special meeting of the
Board. No notice of any such meeting shall be required unless required otherwise
than under this Section 11 and no such notice need in any event make any
reference to any proposed change in the By-laws.
11.2 By Stockholders. The By-laws of the Corporation may also be altered,
amended or repealed or new By-laws may be made or adopted by the vote of a
majority in interest of the stockholders represented and entitled to vote upon
the election of directors, at any meeting at which a quorum is present.